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January 24, 2011

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Pennsylvania Considers Electronic Discovery Rules

by Jonathan B. Stepanian, Esq.

The Pennsylvania Supreme Court Civil Procedure Rules Committee is considering changes to how litigators deal with electronic discovery in state court. However, the Committee is explicitly charting a course away from the complicated approach adopted in federal court and the increasingly intricate interpretation of the federal rules by federal courts.  This should come as good news to health care providers, as electronically stored information becomes more prevalent and litigation becomes more costly.

The proposed Pennsylvania approach is simple: treat electronic discovery like any other discovery.  In fact, aside from mentioning “electronically stored information” in the state Rules of Civil Procedure, the changes barely modify the existing substantive Rules. The principal substantive changes appear in the new proposed Commentary to the Rule to guide state courts in evaluating electronic discovery requests.  The revisions to the Commentary would have courts evaluate those discovery requests by the same “proportionality standard” applicable to other discovery requests.  Under that standard, courts would balance the request with:

(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.

This proposed state court approach charts a more simplistic course than the federal Rules, and this is apparently by design.  Within it’s introduction to the amendments, the Civil Rules Committee stated that:

The purpose of the comment is to provide guidance to the trial judge and counsel so that discovery disputes regarding electronically stored information are resolved pursuant to the general principles of Rule 4011, and not pursuant to the Federal Rules of Civil Procedure and the frequently intricate case law developing in the federal courts.

Many litigators may welcome this more simplistic approach.  The implementation of technology in health care together with an activist approach to electronic discovery could have significantly increased the already exorbitant litigation costs for health care providers.  These proposed amendments suggest that the system courts will pursue a more restrained, and realistic, approach to electronic discovery than the complex rules being developed in federal courts.

It is important to note that these Rule changes are not yet in effect but are, instead, in the comment phase of consideration.

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Jonathan B. Stepanian, Esq.

Jon is an attorney whose practice is specialized in litigation, complex medical professional liability defense, health care, and providing legal counsel on numerous issues associated with day-to-day hospital operations. He has successfully tried several cases to verdict as first-chair trial counsel before juries in both state and federal court. Jon has also represented clients in appellate litigation, mediation, and in connection with administrative agency investigations.

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